Andrew Maye (a minor) (plaintiff) v Craigavon Borough Council (defendant).
Litter (Northern Ireland) Order 1994 - Breach of statutory duty - Whether giving rise to cause of action - Negligence - Council's duty to keep roads free from litter - Whether common law duty exists - Application for direction.
In the High Court of Justice in Northern Ireland (before Mr Justice Kerr); judgment delivered 10 March 1998.
The Litter (Northern Ireland) Order 1994 does not give rise to tortious liability on the part of the defendant council in the form of breach of statutory duty. The council's duty to keep roads clean and free from litter is for the benefit of the public generally and does not give rise to a cause of action in negligence because there is not a sufficiently proximate relationship between the plaintiff and the defendant to give rise to a duty of care.
Mr Justice Kerr so held in acceding to the application for a direction that the plaintiff had failed to raise a prima facie case against the defendant and in dismissing the plaintiff's claim.
Article 7(1)(a) of the Litter (Northern Ireland) Order 1994 provides that: "It shall be the duty of each district council as respects ... any relevant road for which it is responsible ... to ensure that ... the road is, as far as is practicable, kept free of litter."
Article 7(6) of the Order provides that: "Nothing in this Article operates to confer on any person a right of action in tort against the Department or any district council for failing to carry out any duty imposed on it under this Article as respects any road."
Liam McCollum BL for the plaintiff; Alan Comerton QC and Tessa Kitson BL for the defendant.
Mr Justice Kerr said that the plaintiff had suffered a serious injury to his hand when he fell on broken glass as he walked through an underpass and tripped on a bottle. Counsel for the defendant submitted that the express terms of Article 7(6) of the 1994 Order do not admit the possibility of tortious liability in the form of breach of statutory duty and that the plaintiff could not rely on a claim that there had been a negligent discharge of the statutory obligation to keep the road free of litter. Counsel for the plaintiff submitted that a clear distinction had to be drawn between the failure of a defendant to carry out a statutory duty and the negligent discharge of that duty. Counsel for the plaintiff relied on Farrell v NIES [1977] NI 39 in which a street lighting authority was held liable to a plaintiff for its failure to maintain the street light. At page 41E of that judgement, the then Lord Chief Justice, Lord Justice Lowry, said: "In my opinion if the defendants decide to carry out lighting to a certain standard in any particular place or for the duration of any particular period they are exercising a statutory discretion and in doing so they assume an obligation to exercise it with reasonable care."
It was accepted by the plaintiff's counsel that no common law duty existed independently of the 1994 Order but he submitted that the statutory provision created a common law duty by imposing an obligation to clean the area where the plaintiff fell.
Mr Justice Kerr referred to X v Bedfordshire County Council [1995] 2 AC 633 and held that for a breach of a statutory duty to give rise to a private law cause of action it must be shown that, as a matter of construction of the statute, the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action. Article 7 of the 1994 Order is not imposed for the protection of a limited class of the public but is rather for the benefit of the public at large.
Mr Justice Kerr then considered the question of the negligent discharge of a statutory duty. He was of the opinion that Lord Justice Lowry's decision in Farrell v NIES cannot survive the treatment of Lord Browne-Wilkinson in the Bedfordshire County Council case and ruled that it is clearly established that the careless performance of a statutory duty will not give rise to liability unless a duty of care at common law exists.
In considering whether a common law duty of care arises in the performance of statutory function, Mr Justice Kerr followed Lord Browne-Wilkinson's reasoning in Bedfordshire County Council and stated that a distinction must be drawn between cases in which the duty of care is said to arise from the manner in which a statutory discretion is exercised and those in which it is alleged to arise from the manner in which the statutory duty has been implemented in practice. No duty of care can arise from the exercise of a discretion as to how a statutory duty is to be performed unless the purported exercise of the discretion is so unreasonable that it falls outside the ambit of the discretion conferred. Whether the performance of a statutory duty in a negligent manner will give rise to a duty of care would be decided by the usual principles i.e., those laid down in Caparo Industries v Dickman [1990] 2 AC 605.
Upholding the defendant's application and entering judgement against the plaintiff Mr Justice Kerr held that it was not feasible to impose a duty of care for those (such as the plaintiff) who use the underpass regularly but not for those who use it rarely. If a duty exists it must be owed to the public at large and it is not conceivable that a sufficiently proximate relationship exists between the defendant and the public at large. There is not, therefore, a sufficiently proximate relationship between the plaintiff and the defendant to give rise to a duty of care.
Solicitors: Eamonn McEvoy & Co (Lurgan) for the plaintiff; Walker McDonald (Portadown) for the defendant.